Staff management

What if staff refuse to work due to safety concerns?

Toyah Marshall, principal employment law adviser and solicitor, and Charles Spencer, principal health and safety consultant of employment consultants Ellis Whittam explain how to address care home staff concerns amid the Covid-19 pandemic

The care home environment can be complex, demanding and stressful even at the best of times. However, Covid-19 has added a whole new dimension to the challenge of providing exceptional care, and the pressure on staff and employers is at an all-time high. While the impact on Britain’s care

homes was largely overlooked at first, the government has recently acknowledged the alarmingly high death rates occurring within care settings, and rates of infection are reportedly still on the rise. Unlike many businesses who have

temporarily downed tools, those in the residential care sector have no choice but to face the crisis head on, and with the task of protecting the most vulnerable amongst us, every member of staff plays a vital role. However, while tackling this crisis

requires all hands on deck, care workers

are confronted on a daily basis with the very real possibility of contracting the virus and bringing it home to loved ones. This, coupled with the delay in providing testing for residents and employees and ongoing concerns surrounding the lack of PPE, has meant that many are reluctant to come into work. Add to this the absences caused by

employees who are self-isolating because they are sick or symptomatic - or live with someone who is - pregnant, shielding, or have an existing medical condition, and you may be operating on a skeleton staff.

What can I do if staff refuse to work? While those in these latter categories are acting in accordance with government guidance, there is no reason why employees who are not classed as

vulnerable should refuse to come to work, especially if your home has not had any suspected cases of Covid-19. When dealing with refusals to work

from staff who are anxious about getting the virus or finding the pressures of work too stressful in the current climate, your first response should be to speak with the employee to understand their concerns and consider what can be done to reassure them. If you are not able to put their mind at ease and you feel you can manage without them, you could agree a period of unpaid leave. If unpaid leave is not an option, then

unless the employee has a fit note, you are within your right to insist that they attend work. If they refuse, their absence would be unauthorised and disciplinary action may be warranted. Of course, if the employee suffers from a mental health issue that you are aware of, or that they make you aware of now, some sensitivity must be given; however, those employees will most likely be able to get a fit note authorising their absence.

What if there has been a Covid-19 incident? Even if there has been a confirmed or suspected case in the home, refusal to work would not be justified unless the employee belongs to a vulnerable category, lives with someone who does, or has been told to shield. Keep in mind, however, that if their

reluctance is due to health and safety concerns, such as a lack of adequate PPE or a failure to isolate potentially infected residents, this may constitute a protected disclosure, e.g. whistleblowing. The Employment Rights Act 1996

prohibits employers from dismissing or disciplining employees for refusing to discharge their duties “in circumstances of danger which the employee reasonably believed to be serious and imminent”. It would be difficult to think of

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